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Copyright 2005-11

Beyond Data about Data: The Litigators Guide to Metadata

By Craig Ball
2005-2011

In the old joke, a balloonist descends through the fog to get directions. Where am I? she calls
out to a man on the ground, who answers, Youre in a yellow hot air balloon about sixty-seven
feet above the ground. The frustrated balloonist replies, Thanks for nothing, Counselor. Taken
aback, the man on the ground asks, How did you know Im a lawyer? Simple, says the
balloonist, your answer was 100% accurate and totally useless.
If you ask a tech-savvy lawyer, Whats metadata? theres a good chance youll hear, Metadata
is data about data. Another answer thats 100% accurate and totally useless.
Its time to move past data about data and embrace more
Its time to get past defining
useful ways to describe metadataways that enable
metadata as data about data.
counsel to rationally assess relevance and burden attendant
to metadata. Metadata is probably the most misunderstood topic in electronic discovery today. All
too frequently, lawyers for requesting parties demand discovery of the metadata without
specifying what metadata is sought, and lawyers for producing parties fail to act to preserve
metadata of genuine value and relevance.
Its Information and Evidence
Metadata is information that helps us use and make sense of other information. More particularly,
metadata is evidence, typically stored electronically, that describes the characteristics, origins,
usage, structure, alteration and validity of other electronic evidence. Many instances of metadata
in many forms occur in many locations within and without digital files. Some is supplied by the
user, but most metadata is generated by systems and software. Some is crucial evidence and
some is just digital clutter. Appreciating the difference--knowing what metadata exists and
understanding its evidentiary significance--are skills essential to electronic discovery.
Metadata is Evidence?
If evidence is anything that tends to prove or refute an assertion as fact, then clearly metadata is
evidence. Metadata sheds light on the origins, context, authenticity, reliability and distribution of
electronic evidence, as well as provides clues to human behavior. Its the electronic equivalent of
DNA, ballistics and fingerprint evidence, with a comparable power to exonerate and incriminate.
In Williams v. Sprint/United Mgmt Co., 230 F.R.D. 640 (D. Kan. 2005), the federal court ruled:
[W]hen a party is ordered to produce electronic documents as they are maintained
in the ordinary course of business, the producing party should produce the electronic
documents with their metadata intact, unless that party timely objects to production
of metadata, the parties agree that the metadata should not be produced, or the
producing party requests a protective order.
Within the realm of metadata lies discoverable evidence that litigants are obliged to preserve and
produce. Theres as much or more metadata extant as there is information and, like information,
you dont deal with every bit of it. You choose wisely.
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A lawyers ability to advise a client about how to find, preserve and produce metadata, or to object
to its production and discuss or forge agreements about metadata, hinges upon how well he or
she understands metadata.
Its Just Ones and Zeroes
Understanding metadata and its importance in e-discovery begins with awareness that electronic
data is, fundamentally, just a series of ones and zeroes. Though youve surely heard that before,
you may not have considered the implications of information being expressed so severely. There
are no words. There are no spaces or punctuation. There is no delineation of any kind.
How, then, do computers convert this unbroken sequence of ones and zeroes into information that
makes sense to human beings? There has to be some key, some coherent structure imposed to
divine their meaning. But where does it come from? We cant derive it from the data if we cant
first make sense of the data.
Its Encoded
Consider that written English conveys all information using fifty-two upper- and lowercase letters
of the alphabet, ten numerical digits (0-9), some punctuation marks and a few formatting
conventions, like spaces, line feeds, pages, etc. You can think of these collectively as a seventyor eighty-signal code. In turn, much of the same information could be communicated or stored in
Morse code, where a three-signal code composed of dot, dash and pause serves as the entire
alphabet.
Weve all seen movies where a tapping sound is heard and
someone says, Listen! Its Morse code! Suddenly, the
tapping is an encoded message because someone has
furnished metadata (Its Morse code!) about the data (tap,
tap, pause, tap). Likewise, all those ones and zeroes on a
computer only make sense when other ones and zeroesthe
metadatacommunicate the framework for parsing and
interpreting the data stream.

All those ones and zeroes

on a computer only make
sense when other ones and
zeroesthe metadata
communicate the
framework for parsing and
interpreting the data
stream.

So, we need data about the data. We need information that tells us the datas encoding scheme.
We need to know when information with one purpose ends and different information begins. And
we need to know the context, purpose, timeliness and origin of information for it to help us. Thats
metadata.
The Metadata Continuum
Sometimes metadata is elemental, like the contents of a computers master file table detailing
where the sequences of one and zeroes for particular files begin and end. This metadata is
invisible to a user without special tools called hex editors capable of peering through the walls of
the Windows interface into the utilitarian plumbing of the operating system. Without file location
metadata, every time a user tries to access a file or program, the operating system would have to
examine every one and zero to find it. Itd be like looking for someone by knocking on every door
in town!

At other times, metadata supports enhanced functionality not essential to the operation of the
system. The metadata that tracks a files name or the dates a file was created, last accessed and
last modified may only occasionally be probative of an issue in the case, but that information
always makes it easier to locate, sort and segregate files.
Metadata may be instrumental to the intelligibility of information, helping us use and make sense
of it. Sunny and 70 degrees isnt a very useful forecast without metadata indicating when and
where its predicted to be the weather. Similarly, fully understanding information on a website or
within a database, a collaborative environment like Microsofts SharePoint or a social network like
Facebook depends on metadata that defines its location, origin, timing and structure. Its even
common for computerized information to comprise more metadata than data, in the same way that
making sense of the two data points sunny and 70 degrees requires three metadata points:
location, date and time of day.
Theres No Such Thing as The Metadata
As we move up the evolutionary ladder for metadata, some is recorded just in case its needed to
support a specialized task for the operating system or an application. Standard system metadata
fields like Camera Model or Copyright may seem an utter backwater to a lawyer concerned
with spreadsheets and word processed documents, but if the issue is the authenticity of a
photograph or pirated music, these fields can make or break the case. Its all about relevance
and utility.
The point is, theres really no such thing as the metadata for a file or document. Instead, theres
a continuum of metadata that enlightens many aspects of ESI. The metadata that matters
depends upon the issues presented in the case; consequently, the metadata preserved for
litigation should reasonably reflect the issues that wereor which should have beenreasonably
anticipated.
Up by the Bootstraps
When you push the power button on your computer, you trigger an extraordinary expedited
education that takes the machine from insensible illiterate to worldly savant in a matter of
seconds. The process starts with a snippet of data on a chip called the ROM BIOS storing just
enough information in its Read Only Memory to grope around for the Basic Input and Output
System devices like the keyboard, screen and hard drive. It also holds the metadata needed to
permit the computer to begin loading ones and zeroes from storage and to make just enough
sense of their meaning to allow more metadata to load from the disk, in turn enabling the
computer to access more data and, in this widening gyre, teach itself to be a modern, capable
computer.
This rapid, self-sustaining self-education is as magical as if you hoisted yourself into the air by
pulling on the straps of your boots, which is truly why its called bootstrapping or just booting a
computer.
File Systems
So now that our computers taught itself to read, it needs a library. Most of those ones and zeroes
on the hard drive are files that, like books, are written, read, revised and referenced. Computers
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use file systems to keep track of files just as libraries once used card catalogues and the Dewey
Decimal system to track books.
Imagine you own a thousand books without covers that you stored on one very long shelf. You
also own a robot that cant read, but Robby can count books very accurately. How would you
instruct Robby to get a particular book?
If you know the order in which the books are stored, youd say, Robby, bring me the 412 th book.
If it was a set of encyclopedias, youd add: and the next 23 books. The books dont know
where theyre shelved. Each books location is metadata about the book.
Locating something by specifying that its so many units from a particular point is called relative
addressing. The number of units the destination is set off from the specified point is called the
offset. Computers use offset values to indicate the locations of files on storage devices as well as
to locate particular information within files.
Computers use various units to store and track information, so offsets arent always expressed in
the same units. A bit stores a one or zero, eight bits is a byte, (sufficient to hold a letter in the
Latin alphabet), 512 bytes is a sector or block (see Appendix A) and (typically) eight contiguous
sectors or blocks is a cluster. The cluster is the most common unit of logical storage, and modern
computers tend to store files in as many of these 4,096-byte clusters, or data baskets, as
needed. Offset values are couched in bytes when specifying the location of information within
files and as sectors when specifying the location of files on storage media.
Metadata Mix-up: Application Metadata
To the extent lawyers have heard of metadata at all, its likely in the context of just one species of
metadata called application metadata
with the fearsome potential to reveal
confidential or privileged information
embedded within electronic documents.
Computer programs or applications store
work product in files native to them,
meaning that the data is structured and
encoded to support the application. As
these applications added features--like the
ability to undo changes in or collaborate
on a document--the native files used to
store documents had to retain those
changes and collaborations.
An oft-cited culprit is Microsoft Word, and
a cottage industry has grown up offering
utilities to strip embedded information, like
comments and tracked changes, from
Word documents. Because of its potential
to embarrass lawyers or compromise privilege, metadata has acquired an unsavory reputation
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amongst the bar. But metadata is much more than simply the embedded application metadata
that affords those who know how to find it the ability to dredge up a documents secrets.
By design, application metadata is embedded in the file it describes and moves with the file when
you copy it. However, not all metadata is embedded (for the same reason that cards in a library
card catalog arent stored between the pages of the books). You have to know where the
information resides to reach it.
System Metadata
Unlike books, computer files arent neatly bound tomes with names embossed on spines and
covers. Often, files dont internally reflect the name theyve been given or other information about
their location, history or ownership. The
information about the file which is not
embedded within the file it describes but is
stored externally is its system metadata.
The computers file management system
uses system metadata to track file
locations and store demographics about
each files name, size,
creation,
modification and usage.
System metadata is crucial to electronic
discovery because so much of our ability
to identify, find, sort and cull information
depends on its system metadata values.
For example, system metadata helps
identify the custodians of files, when files
were created or altered and the folders in which they were stored. System metadata stores much
of the who, when, where and how of electronic evidence.
Every computer employs one or more databases to keep track of system metadata. In computers
running the Windows operating system, the principal card catalog tracking system metadata is
called the Master File Table or MFT. In the predecessor DOS operating system, it was called
the File Allocation Table or FAT. The more sophisticated and secure the operating system, the
greater the richness and complexity of the system metadata in the file table.
Windows Shell Items
In the Windows world, Microsoft calls any single piece of content, such as a file, folder, email
message or contact, a Shell item. Any individual piece of metadata associated with a Shell item
is called a property of the item. Windows tracks 284 distinct metadata properties of Shell items
in 28 property categories, as set out fully in Appendix B. To see the list of Shell item properties
on your own Windows system, right click on the column names in any folder view and select
More. Examining just a handful of these in four key categories reveals metadata of great
potential evidentiary value existing within and without files, messages and photos:

Category
Document

Message

Photo
System

Properties
ClientID
Contributor
DateCreated
DatePrinted
DateSaved
DocumentID
AttachmentContents
AttachmentNames
BccAddress
BccName
CcAddress
CcName
ConversationID
ConversationIndex
DateReceived
DateSent
Flags
CameraManufacturer
CameraModel
ApplicationName
Author
Comment
Company
ComputerName
ContainedItems
ContentType
DateAccessed
DateAcquired
DateArchived
DateCompleted
DateCreated
DateImported
DateModified
DueDate
EndDate
FileAttributes
FileCount
FileDescription
FileExtension
FileName
IsShared

LastAuthor
RevisionNumber
Template
TotalEditingTime
Version
FromAddress
FromName
HasAttachments
IsFwdOrReply
SenderAddress
SenderName
Store
ToAddress
ToDoFlags
ToDoTitle
ToName
CameraSerialNumber
DateTaken
ItemAuthors
ItemDate
ItemFolderNameDisplay
ItemFolderPathDisplay
ItemName
OriginalFileName
OwnerSID
Project
Sensitivity
SensitivityText
SharedWith
Size
Status
Subject
Title
FileOwner
FlagStatus
FullText
IsAttachment
IsDeleted
IsEncrypted

Much More Metadata

The 284 Windows Shell item properties are by no means an exhaustive list of metadata. Software
applications deploy their own complements of metadata geared to supporting features unique to
each application. E-mail software, word processing applications and spreadsheet, database, web
browser and presentation software collectively employ hundreds of additional fields of metadata.

For example, digital photographs can carry dozens of embedded

fields of metadata detailing information about the date and time the
photo was taken, the camera, settings, exposure, lighting, even
precise geolocation data. Many are surprised to learn that photos
taken with cell phones having GPS capabilities (like the Apple
iPhone) contain detailed information about where the photo was
taken to a precision of about ten meters.

Photos taken with cell

phones having GPS
capabilitiescontain
detailed information
about where the photo
was taken.

The popular Microsoft Outlook e-mail client application provides for more than 180 standard
application metadata fields which users may select to customize their view. These are set out
fully in Appendix C.
But even this broad swath of metadata is still only part of the probative information about
information recorded by computers. Within the Master File Table and index records used by
Windows to track all files, still more attributes are encoded in hexadecimal notation. In fact, an
ironic aspect of Windows is that the record used to track information about a file may be larger
than the file itself! Stored within the hives of the System Registrythe Big Brother database that
tracks attributes covering almost any aspect of the systemare thousands upon thousands of
attribute values called registry keys. Other records and logs track network activity and journal
virtually every action.
Matryoshka Metadata
Matryoshka are carved, cylindrical Russian dolls that nest inside one another. Its helpful to think
of computer data the same way. If the evidence of interest is a Word document attached to an email, the document has its usual complement of application metadata that moves with the file; but,
as it nests within an e-mail message, its system metadata is only that which is contained within
the transporting message. The transporting message, in turn, carries its own metadata
concerning transit, addressing, structure, encoding and the like. The message is managed by
Outlook, which maintains a rich complement of metadata about the message and about its own
configuration. As configured, Outlook may store all messages and application metadata in a
container file called Outlook.PST. This container file
exists within a file system of a computer that stores
system metadata about the container file, such as
where the file is stored, under whose user account,
when it was last modified, its size, name, associated
application and so on.
Within this Matryoshka maelstrom of metadata,
some information is readily accessible and
comprehensible while other data is so Byzantine and
cryptic as to cause even highly skilled computer
forensic examiners to scratch their heads.
Forms of Metadata
Now that your head is spinning from all the types, purposes and sources of metadata, lets add
another complexity concern: the form of the metadata. Metadata arent presented the same way
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from field to field or application to application. For example, some of the standard metadata fields
for Outlook e-mail are simply bit flags signifying true or false for Attachment, Do Not Auto
Archive, Read or Receipt Requested. Some fields reference different units, e.g., Size
references bytes, where Retrieval Time references minutes. Several fields even use the same
value to mean different things, e.g., a value of 1 signifies Completed for Flag Status, but
denotes Normal for Importance, Personal for Sensitivity and Delivered for Tracking
Status.
The form of metadata is a key consideration when deciding how to preserve and produce the
information. Not everyone would appreciate a response like, for this message, item type 0x0029
with value type 0x000b was set to 0x00, when the question posed was whether the sender
sought a read receipt. Because some metadata items are simply bit flags or numeric values and
make sense only as they trigger an action or indication in the native application, preserving
metadata can entail more than just telling opposing counsel, we will grab it and give it to you.
Its not that locating and interpreting any particular item is difficult, but you have to know whether
your firm, client or service provider has the tools and employs a methodology that makes it easy.
Thats why its crucial to know what metadata is routinely collected and amenable to production
before making commitments to opposing counsel or the court. Any e-discovery vendor you
employ should be able to readily identify the system and application metadata values they
routinely collect and process for production. Any still-existing metadata value can be collected
and processed; but, some require specialized tools and software, custom programming or
changes to established workflows.
Relevance and Utility
How much of this metadata is relevant and discoverable? Would I be any kind of lawyer if I didnt
answer, It depends? In truth, it does depend upon what issues the data bears upon, its utility
and the cost and burden of preservation and review.
Metadata is unlike almost any other evidence in that its import in discovery may flow from its
probative value (relevance as evidence), its utility (functionally abetting the searching, sorting and
interpretation of ESI) or both. If the origin, use, distribution, destruction or integrity of electronic
evidence is at issue, the relevant digital DNA of metadata is essential, probative evidence that
needs to be preserved and produced. Likewise, if the metadata materially facilitates the searching
sorting and management of electronic evidence, it should be preserved and produced for its utility.
Does this then mean that every computer system and data device in every case must be
forensically imaged and analyzed by experts? Absolutely not! Once we understand what
metadata exists and what it signifies, a continuum of reasonableness will inform our actions. A
competent police officer making a traffic stop collects relevant information, such as, e.g., the
drivers name, address, vehicle license number, drivers license number and date, time and
location of offense. We wouldnt expect the traffic cop to collect a bite mark impression, DNA
sample or shoe print from the driver. But, make it a murder case and the calculus changes.
Addressing just the utility aspect of metadata in the context of forms of production, The Sedona
Conference guideline states:
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Absent party agreement or court order specifying the form or forms of production,
production should be made in the form or forms in which the information is ordinarily
maintained or in a reasonably usable form, taking into account the need to
produce reasonably accessible metadata that will enable the receiving party to
have the same ability to access, search, and display the information as the
producing party where appropriate or necessary in light of the nature of the
information and the needs of the case.
The Sedona Principles Addressing Electronic Document Production, Second Edition (June,
2007), Principle 12 (emphasis added).
The crucial factors are burden and cost balanced against utility and relevance. The goal should
be a level playing field between the parties in terms of their ability to see and use relevant
electronic evidence.
So where do we draw the line? Begin by recognizing that
the advent of electronic evidence hasnt changed the Periodically re-assess the
fundamental dynamics of discovery: Litigants are entitled to adequacy of preservation and
discover relevant, non-privileged information, and relevance production and act to meet
depends on the issues before the court.
Relevance changed circumstances.
assessments arent static, but change as new evidence
emerges and new issues arise. Metadata irrelevant at the start of a case may become decisive
when, e.g., allegations of data tampering or spoliation emerge. Parties must periodically reassess the adequacy of preservation and production of metadata and act to meet changed
circumstances.
Metadata Musts
There are easily accessible, frequently valuable metadata that, like the information collected by
the traffic cop, we should expect to routinely preserve. Examples of essential system metadata
fields for any file produced are:

Custodian;
Source Device;
Originating Path (File path of the file as it resided in its original environment);
Filename (including extension);
Last Modified Date; and
Last Modified Time.

Any party producing or receiving ESI should be able to state something akin to, This spreadsheet
named Cash Forecast.xls came from the My Documents folder on Sarah Smiths Dell laptop and
was last modified on January 16, 2011 at 2:07 PM CST.
One more metadata must for time and date information is the UTC time zone offset applicable to
each time value (unless all times have been normalized; that is, processed to a common time
zone). UTC stands for both for Temps Universel Coordonn and Coordinated Universal Time. It's
a fraction of a second off the better known Greenwich Mean Time (GMT) and identical to Zulu
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time in military and aviation circles. Why UTC instead of TUC or CUT? It's a diplomatic
compromise, for neither French nor English speakers were willing to concede the acronym.
Because time values may be expressed with reference to local time zones and variable daylight
savings time rules, you need to know the UTC offset for each item.
Application metadata is, by definition, embedded within native files; so, native production of ESI
obviates the need to selectively preserve or produce application metadata. Its in there. But when
ESI is converted to other forms, the producing party must assess what metadata will be lost or
corrupted by conversion and identify, preserve and extract relevant or utile application metadata
fields for production.
For e-mail messages, this is a fairly straightforward process, notwithstanding the dozens of
metadata values that may be introduced by e-mail client and server applications. The metadata
musts for e-mail messages are:

Custodian Owner of the mail container file or account collected;

To Addressee(s) of the message;
From The e-mail address of the person sending the message;
CC Person(s) copied on the message;
BCC Person(s) blind copied on the message;
Date Sent Date the message was sent;
Time Sent Time the message was sent;
Subject Subject line of the message;
Date Received Date the message was received;
Time Received Time the message was received;
Attachments Name(s) or other unique identifier(s) of attachments;
Mail Folder Path Path of the message to its folder from the root of the originating mail
account;
Message ID Microsoft Outlook or similar unique message identifier; and
Text The extracted text of the message body.

E-mail messages that traverse the Internet contain so-called header data detailing the routing and
other information about message transit and delivery. Whether header data should be preserved
and produced depends upon the reasonable anticipation that questions concerning authenticity,
receipt or timing of messages will arise.
The metadata essentials must further include metadata values generated by the discovery and
production process itself, such as Bates numbers and ranges, hash values, production paths and
names, extracted or OCR text, family designations and the like.
When ESI other than e-mail is converted to non-native forms, it can be enormously difficult to
preserve, produce and present relevant or necessary application metadata in ways that dont limit
its utility or intelligibility. For example, tracked changes and commentary in Microsoft Office
documents may be incomprehensible without seeing them in context, i.e., superimposed on the
document. By the same token, furnishing a printout or image of the document with tracked
changes and comments revealed can be confusing and deprives a recipient of the ability to see
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the document as the user ultimately saw it. If native forms will not be produced, the most
equitable approach may be to produce the document twice: once with tracked changes and
comments hidden and once with them revealed.
For certain ESI, there is simply no viable alternative to native production with metadata intact.
The classic example is a spreadsheet file. The loss of functionality and the confusion engendered
by rows and columns that break and splay across multiple pages mandates native production.
The same loss of functionality occurs with sound files (e.g., voice mail), video, animated
presentations (i.e., PowerPoint) and content like databases, web content, SharePoint, social
networking sites and collaborative environments where the structure and interrelationship of the
information--reflected in its metadatadefines its utility and intelligibility.
The Path to Production of Metadata
The balance of this paper discusses steps typically taken in shepherding a metadata production
effort, including:

Gauge spoliation risks before you begin

Identify potential forms of metadata
Assess relevance
Consider authentication and admissibility
Evaluate need and methods for preservation
Collect metadata
Plan for privilege and production review
Resolve production issues

Gauge spoliation risks before you begin

German scientist Werner Heisenberg thrilled physicists and philosophy majors alike when he
posited that the very act of observing alters the reality observed. Heisenbergs Uncertainty
Principal speaks to the world of subatomic particles, but it aptly describes a daunting challenge to
lawyers dealing with metadata: When you open any document in Windows without first employing
specialized hardware or software, metadata changes and prior metadata values are lost. Altered
metadata implicates not only claims of spoliation, but also severely hampers the ability to filter
data chronologically. How, then, can a lawyer evaluate documents for production without reading
them?
Begin by gauging the risk. Not every case is a crime scene, and few cases implicate issues of
computer forensics. Those that do demand extra care be taken immediately to preserve a broad
range of metadata evidence. Further, it may be no more difficult or costly to preserve data using
forensically sound methods that reliably preserve all data and metadata.
For the ordinary case, a working knowledge of the most obvious risks and simple precautions are
sufficient to protect the metadata most likely to be needed. (See Metadata Musts, supra).
1. Windows systems typically track at least three date values for files, called MAC dates for Last
Modified, Last Accessed and Created. Of these, the Last Accessed date is the most fragile,

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yet least helpful. Last accessed dates can be changed by previewing files and running virus
scans. Further, last accessed dates are only infrequently updated in Windows Vista and Win7.
2. Similarly unhelpful in e-discovery is the Created date. The created date is often presumed to
be the authoring date of a document, but it more accurately reflects the date the file was
created within the file system of a particular device. So when you copy a file to new media,
youre created it on the new media as of the date of copying, and the created date changes
accordingly. Conversely, when you use an old file as a template to create a new document,
the creation date of the template stays with the new document.
3. The date value of greatest utility in e-discovery is the Last Modified date. The last modified
date of a file is not changed by copying, previewing or virus scans. It changes only when a file
is opened and saved; however, it is not necessary that the user-facing content of a document
be altered for the last accessed date to change. Any changeincluding subtle, automatic
changes to application metadata--will trigger an update to the last modified date when the file
is re-saved by a user.
4. Apart from corruption, application metadata does not change unless a file is opened. So, the
easiest way to preserve a files application metadata is to keep a pristine, unused copy of the
file and access only working copies. By always having a path back to a pristine copy,
inadvertent loss or corruption of metadata is harmless error. Calculating and preserving hash
values for the pristine copies is a surefire way to demonstrate that application metadata hasnt
changed
5. An approach favored by computer forensic professionals is to employ write blocking hardware
or software to intercept all changes to the evidence media.
6. Finally, copies can be transferred to read only media (e.g., a CD-R or DVD-R), permitting
examination without metadata corruption.
Identify potential forms of metadata
To preserve metadata and assess its relevance, you have to know it exists. So for each principal
file type subject to discovery, assemble a list of associated metadata of potential evidentiary or
functional significance. Youll likely need to work with an expert the first time or two, but once you
have a current and complete list, it will serve you in future matters. Youll want to know not only
what the metadata field contains, but also its location and its significance.
For unfamiliar or proprietary applications and environments, enlist help identifying metadata from
the clients IT personnel. Most importantly, seek your opponents input, too. Your job is simpler
when the other side is conversant in metadata and can expressly identify fields of interest. The
parties may not always agree, but at least youll know whats in dispute.
Assess relevance
Are you going to preserve and produce dozens and dozens of metadata values for every
document and e-mail in the case? Probably not, although you may find it easier to preserve all
than selectively cull out just those values you deem relevant.
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Metadata is like the weather reports from distant cities which run in the daily paper. Though only
occasionally relevant, you want the information available when you need it.
Relevance is always subjective and is as fluid as the issues in the case. Case in point: two
seemingly innocuous metadata fields common to Adobe Portable Document Format (PDF) files
are PDF Producer and PDF Version. These are listed as Document Properties under the
File menu in any copy of Adobe Acrobat. Because various programs can link to Acrobat to
create PDF files, the PDF Producer field stores information concerning the source application,
while the PDF Version field tracks what release of Acrobat software was used to create the PDF
document. These metadata values may seem irrelevant, but consider how that perception
changes if the dispute turns on a five-year-old PDF contract claimed to have been recently forged.
If the metadata reveals the PDF was created using a scanner introduced to market last year and
the latest release of Acrobat, that metadata supports a claim of recent fabrication. In turn, if the
metadata reflects use of a very old scanner and an early release of Acrobat, the evidence bolsters
the claim that the document was scanned years ago. Neither is conclusive on the issue, but both
are relevant evidence needing to be preserved and produced.
Assessing relevance is another area where communication with an opponent is desirable. Often,
an opponent will put relevance concerns to rest by responding, I dont need that. For every
opponent who demands all the metadata, there are many who neither know nor care about
metadata.
Consider Authentication and Admissibility
Absent indicia of authenticity like signature, handwriting and physical watermarks, how do we
establish that electronic evidence is genuine or that a certain individual created an electronic
document? Computers may be shared or unsecured and passwords lost or stolen. Software
permits alteration of documents sans the telltale signs that expose paper forgeries. Once, we
relied upon dates in correspondence to establish temporal relevance, but now documents may
generate a new date each time they are opened, inserted by a word processor macro as a
convenience to the user.
Where the origins and authenticity of evidence are in issue, preservation of original date and
system user metadata is essential. When deciding what metadata to preserve or request,
consider, inter alia, network access logs and journaling, evidence of other simultaneous user
activity and version control data.
An important role of metadata is establishing a sound chain of custody for ESI. Through every
step in e-discovery--collection, processing, review, and productionthe metadata should facilitate
a clear, verifiable path back to the source ESI, device and custodian.
In framing a preservation strategy, balance the burden of preservation against the likelihood of a
future need for the metadata, but remember, if you act to preserve metadata for documents
supporting your case, its hard to defend a failure to preserve metadata for items bolstering the
oppositions case. Failing to preserve metadata could deprive you of the ability to challenge the
relevance or authenticity of material you produce.
14

 Evaluate Need and Methods for Preservation

Not every item of metadata is important in every case, so what Fail to preserve metadata
factors should drive preservation? The case law, rulings of the at the earliest opportunity
presiding judge and regulatory obligations are paramount and you may never be able
concerns, along with obvious issues of authenticity and to replicate what was lost.
relevance; but another aspect to consider is the stability of
particular metadata. As discussed, some essential metadata fields, like Last Modified Date,
change when a file is used and saved. If you dont preserve dynamic data, you lose it. Where a
preservation duty has attached, by, e.g., issuance of a preservation order or operation of law, the
loss of essential metadata may constitute spoliation subject to sanction.
How, then, do you avoid spoliation occasioned by review and collection? What methods will
preserve the integrity and intelligibility of metadata? Poorly executed collection efforts can corrupt
metadata. When, for example, a custodian or reviewer copies responsive files to new media,
prints documents or forwards e-mail, metadata is altered or Poorly executed collection
lost.
Consequently, metadata preservation must be efforts can corrupt metadata.
addressed before a preservation protocol is implemented. Be
certain to document what was done and why. Advising your opponents of the proposed protocol
in sufficient time to allow them to object, seek court intervention or propose an alternate protocol
helps to protect against belated claims of spoliation.
Collect Metadata
Because metadata is stored both within and without files, simply duplicating a file without
capturing its system metadata may be insufficient. However, not all metadata preservation efforts
demand complex and costly solutions. Its possible to tailor the method to the case in a
proportional way. As feasible, record and preserve system metadata values before use or
collection. This can be achieved using software that archives the basic system metadata values
to a table, spreadsheet or CSV file. Then, if an examination results in a corruption of metadata,
the original values can be ascertained. Even just archiving files (zipping them) may be a
sufficient method to preserve associated metadata. In other cases, youll need to employ forensic
imaging or use vendors specializing in electronic discovery.
Whatever the method chosen, be careful to preserve the association between the data and its
metadata. For example, if the data is the audio component of a voice mail message, it may be of
little use unless correlated with the metadata detailing the date and time of the call and the identity
of the voice mailbox user.
When copying file metadata, know the limitations of the environment and medium in which youre
working. I learned this lesson the hard way years ago while experimenting with recordable CDs
as a means to harvest files and their metadata. Each time I tried to store a file and its MAC dates
(modified/accessed/created) on a CD, I found that the three different MAC dates derived from the
hard drive would always emerge as three identical MAC dates when read from the CD! I learned
that optical media like CD-Rs arent formatted in the same manner as magnetic media like hard
drives. Whereas the operating system formats a hard drive to store three distinct dates, CD-R
media stores just one. In a sense, a CD hasnt the slots to store all three dates. When the CDs
15

contents are copied back to magnetic media, the operating system re-populates the slots for the
three dates with the single date found on the optical media. Thus, using a CD in this manner
serves to both corrupt and misrepresent the metadata. Similarly, different operating systems and
versions of applications maintain different metadata; so, test your processes against alteration,
truncation or loss of metadata.
Plan for Privilege and Production Review
The notion of reviewing metadata for privileged communications may seem odd unless you
consider that application metadata potentially contains deleted content and commentary. When
the time comes to review metadata for production and privilege, the risks of spoliation faced in
harvest may re-appear during review. Consider:

How will you efficiently access metadata?

Will the metadata exist in a form you can interpret?
Will your examination alter the metadata?
How will you flag particular metadata for production?
How can you redact privileged or confidential metadata?

If a vendor or in-house discovery team has extracted the metadata to a slip-sheet in an image
format like TIFF or PDF, review is as simple as reading the data. However, if review will take
place in native format, some metadata fields may be inaccessible, encoded or easily corrupted. If
the review set is hosted online, be certain you understand which metadata fields are accessible
and intelligible via the review tool and which are not. Dont just assume: test.
Application Metadata and Review
Many lawyers deal with metadata in the time-honored way: by pretending that it doesnt exist.
That is, they employ review methods that dont display application metadata, such as comments
and tracked changes present in native Microsoft Office productivity documents. These lawyers
review only what prints instead of all the information in the document. Rather than adjust their
methods to the evidence, they refuse to produce ESI with its application metadata intact lest they
unwittingly produce privileged or confidential content.
They defend this behavior by claiming that the burden to review application metadata for
privileged or confidential content is greater than the evidentiary value of that content. To insure
that requesting parties cannot access all that metadata the producing counsel ignored, producing
parties instead strip away all metadata, either by printing the documents to paper or hiring a
vendor to convert the ESI to static images (i.e., TIFFs). Doing so successfully removes the
metadata, but wrecks the utility and searchability of most electronic evidence.
Sometimes, counsel producing TIFF image productions will undertake to reintroduce some of the
stripped metadata and searchable text as ancillary productions called load files. The production
of document images and load files is a high-cost, low utility, error-prone approach to e-discovery;
but, its biggest drawback is that its increasingly unable to do justice to the native files it supplants.
When produced as images, spreadsheets often become useless and incomprehensible.
Multimedia files disappear. Any form of interactive, animated or structured information ceases to

16

work. In general, the richer the information in the evidence, the less likely it is to survive
production in TIFF.
Despite these shortcomings, lawyers cling to cumbersome TIFF productions, driving up ediscovery costs. This is troubling enough, but raises a disturbing question: Why does any lawyer
assume he or she is free to unilaterally suppress--without review or proffer of a privilege log
integral parts of discoverable evidence? Stripping away or ignoring metadata thats an integral
part of the evidence seems little different from erasing handwritten notes in medical records
because youd rather not decipher the doctors handwriting!
In Williams v. Sprint/United Mgmt Co., 230 F.R.D. 640 (D. Kan. 2005), concerns about
privileged metadata prompted the defendant to strip out metadata from the native-format
spreadsheet files it produced in discovery. The court responded by ordering production of all
metadata as maintained in the ordinary course of business, save only privileged and expressly
protected metadata.
The court was right to recognize that privileged information need not be produced, wisely
distinguishing between surgical redaction and blanket excision. One is redaction following
examination of content and a reasoned judgment that particular matters are privileged. The other
excises data in an overbroad and haphazard fashion, grounded only on an often-unwarranted
concern that the data pared away might contain privileged information. The baby goes out with
the bathwater. Moreover, blanket redaction based on privilege concerns doesnt relieve a party of
the obligation to log and disclose such redaction. The defendant in Williams not only failed to
examine or log items redacted, it left it to the plaintiff to figure out that something was missing.
The underlying principle is that the requesting party is entitled to the
metadata benefits available to the producing party. That is, the
producing party may not vandalize or hobble electronic evidence for
production without adhering to the same rules attendant to redaction
of privileged and confidential information from paper documents.

The requesting party is

entitled to the metadata
benefits available to the
producing party.

Resolve Production Issues

Like other forms of electronic evidence, metadata may be produced in its native and near-native
formats, as a database or a delimited load file, in an image format, hosted in an online database
or even furnished as a paper printout. However, metadata presents more daunting production
challenges than other electronic evidence. One hurdle is that metadata is often unintelligible
outside its native environment without processing and labeling. How can you tell if an encoded
value describes the date of creation, modification or last access without both decoding the value
and preserving its significance with labels? Another issue is that metadata isnt always textual. It
may consist of no more than a flag in an index entryjust a one or zerowholly without meaning
unless you know what it denotes. A third challenge to producing metadata lies in finding ways to
preserve the relationship between metadata and the data it describes and, when obliged to do so,
to present both the data and metadata so as to be electronically searchable.
When files are separated from their metadata, we lose much of the ability to sort, manage and
authenticate them. Returning to the voice mail example, unless the sound component of the
17

message (e.g., the WAV file) is paired with its metadata, a reviewer must listen to the message in
real time, hoping to identify the voice and deduce the date of the call from the message. Its a
Herculean task without metadata, but a task made much simpler if the producing party, e.g., drops
the WAV file into an Adobe PDF file as an embedded sound file, then inserts the metadata in the
image layer. Now, a reviewer can both listen to the message and search and sort by the
metadata.
Sometimes, simply producing a table, spreadsheet or load file detailing originating metadata
values will suffice. On other occasions, only native production or forensically qualified imaging will
suffice to carry forward relevant metadata. Determining the method of metadata production best
suited to the case demands planning, guidance from experts and cooperation with the other side.
Beyond Data about Data
The worlds inexorable embrace of digital technologies serves to
escalate the evidentiary and functional value of metadata in ediscovery. Today, virtually all information is born electronically,
bound to and defined by its metadata as we are bound to and defined
by our DNA. The proliferation and growing importance of metadata
dictates that we move beyond unhelpful definitions like data about
data, toward a fuller appreciation of metadatas many forms and
uses.

18

Today, virtually all

information is born
electronically, bound
to and defined by its
metadata as we are
bound to and defined
by our DNA.

Appendix A: Just Ones and Zeroes

The binary data above comprises a single hard drive sector storing a binary encoding of the text below
(excerpted from David Copperfield by Charles Dickens):
I was born with a caul, which was advertised for sale, in the newspapers, at the low price of fifteen guineas. Whether
sea-going people were short of money about that time, or were short of faith and preferred cork jackets, I don't know;
all I know is, that there was but one solitary bidding, and that was from an attorney connected with the bill-broking
business, who offered two pounds in cash, and the balance in sherry, but declined to be guaranteed from drowning on
any higher bargain. Consequently the advertisement was withdrawn at a dead loss - for as to sherry, my poor dear
mother's own sherry was in the market then - and ten years afterwards, the caul was put up in a raffle down in our
part of the country, to fifty members at half-a-crown a head, the winner to spend five shillings. I was present myself,
and I remember to have felt quite uncomfortable and confused, at a part of myself being disposed of in that way. The
caul was won, I recollect, by an old lady with a hand-basket, who, very reluctantly, pr

A 1 terabyte hard drive ($75 at your local Wal-Mart) contains more than 2.1 billion sectors.
19

Appendix B: Windows Shell Item Properties

Category
Audio

Calendar

Communication

Computer
Contact

Properties
ChannelCount
Compression
EncodingBitrate
Format
IsVariableBitRate
Duration
IsOnline
IsRecurring
Location
OptionalAttendeeAddresses
OptionalAttendeeNames
OrganizerAddress
OrganizerName
AccountName
DateItemExpires
FollowupIconIndex
HeaderItem
PolicyTag
DecoratedFreeSpace

PeakValue
SampleRate
SampleSize
StreamName
StreamNumber
ReminderTime
RequiredAttendeeAddresses
RequiredAttendeeNames
Resources
ResponseStatus
ShowTimeAs
ShowTimeAsText

Anniversary
AssistantName
AssistantTelephone
Birthday
BusinessAddress
BusinessAddressCity
BusinessAddressCountry
BusinessAddressPostalCode
BusinessAddressPostOfficeBox
BusinessAddressState
BusinessAddressStreet
BusinessFaxNumber
BusinessHomePage
BusinessTelephone
CallbackTelephone
CarTelephone
Children
CompanyMainTelephone
Department
EmailAddress
EmailAddress2
EmailAddress3
EmailAddresses
EmailName
FileAsName
FirstName
FullName
Gender
GenderValue
Hobbies
HomeAddress
HomeAddressCity
HomeAddressCountry
HomeAddressPostalCode
HomeAddressPostOfficeBox
HomeAddressState

HomeTelephone
IMAddress
Initials
JA.CompanyNamePhonetic
JA.FirstNamePhonetic
JA.LastNamePhonetic
JobTitle
Label
LastName
MailingAddress
MiddleName
MobileTelephone
NickName
OfficeLocation
OtherAddress
OtherAddressCity
OtherAddressCountry
OtherAddressPostalCode
OtherAddressPostOfficeBox
OtherAddressState
OtherAddressStreet
PagerTelephone
PersonalTitle
PrimaryAddressCity
PrimaryAddressCountry
PrimaryAddressPostalCode
PrimaryAddressPostOfficeBox
PrimaryAddressState
PrimaryAddressStreet
PrimaryEmailAddress
PrimaryTelephone
Profession
SpouseName
Suffix
TelexNumber
TTYTDDTelephone

SecurityFlags
Suffix
TaskStatus
TaskStatusText

20

Devices

Digital
Mgmt.
Document

GPS

Rights

HomeAddressStreet
HomeFaxNumber
Device.PrinterURL
DeviceInterface.PrinterDriverDirectory
DeviceInterface.PrinterDriverName
DeviceInterface.PrinterName
DeviceInterface.PrinterPortName
BatteryLife
BatteryPlusCharging
BatteryPlusChargingText
Category
CategoryGroup
CategoryPlural
ChargingState
Connected
ContainerId
DefaultTooltip
DeviceDescription1
DeviceDescription2
DiscoveryMethod
FriendlyName
FunctionPaths
InterfacePaths
IsDefault
IsNetworkConnected
IsShared
IsSoftwareInstalling
LaunchDeviceStageFromExplorer
LocalMachine
Manufacturer
MissedCalls

WebPage

DatePlayExpires
DatePlayStarts
Description
ByteCount
CharacterCount
ClientID
Contributor
DateCreated
DatePrinted
DateSaved
Division
DocumentID
HiddenSlideCount
LastAuthor
LineCount
Manager
Altitude
AltitudeDenominator
AltitudeNumerator
AltitudeRef

IsProtected
PlayCount

ModelName
ModelNumber
NetworkedTooltip
NetworkName
NetworkType
NewPictures
Notification
Notifications.LowBattery
Notifications.MissedCall
Notifications.NewMessage
Notifications.NewVoicemail
Notifications.StorageFull
Notifications.StorageFullLinkText
NotificationStore
NotWorkingProperly
Paired
PrimaryCategory
Roaming
SafeRemovalRequired
SharedTooltip
SignalStrength
Status1
Status2
StorageCapacity
StorageFreeSpace
StorageFreeSpacePercent
TextMessages
Voicemail

MultimediaClipCount
NoteCount
PageCount
ParagraphCount
PresentationFormat
RevisionNumber
Security
SlideCount
Template
TotalEditingTime
Version
WordCount
ImgDirection
ImgDirectionDenominator
ImgDirectionNumerator
ImgDirectionRef

21

Image

Journal
Link

Media

AreaInformation
Date
DestBearing
DestBearingDenominator
DestBearingNumerator
DestBearingRef
DestDistance
DestDistanceDenominator
DestDistanceNumerator
DestDistanceRef
DestLatitude
DestLatitudeDenominator
DestLatitudeNumerator
DestLatitudeRef
DestLongitude
DestLongitudeDenominator
DestLongitudeNumerator
DestLongitudeRef
Differential
DOP
DOPDenominator
DOPNumerator
BitDepth
ColorSpace
CompressedBitsPerPixel
CompressedBitsPerPixelDenominator
CompressedBitsPerPixelNumerator
Compression
CompressionText
Contacts

Latitude
LatitudeDenominator
LatitudeNumerator
LatitudeRef
Longitude
LongitudeDenominator
LongitudeNumerator
LongitudeRef
MapDatum
MeasureMode
ProcessingMethod
Satellites
Speed
SpeedDenominator
SpeedNumerator
SpeedRef
Status
Track
TrackDenominator
TrackNumerator
TrackRef
VersionID
Dimensions
HorizontalResolution
HorizontalSize
ImageID
ResolutionUnit
VerticalResolution
VerticalSize
EntryType

Arguments
Comment
DateVisited
Description
AuthorUrl
AverageLevel
ClassPrimaryID
ClassSecondaryID
CollectionGroupID
CollectionID
ContentDistributor
ContentID
CreatorApplication
CreatorApplicationVersion
DateEncoded
DateReleased
Duration
DVDID
EncodedBy
EncodingSettings

Status
TargetExtension
TargetParsingPath
TargetSFGAOFlags
FrameCount
MCDI
MetadataContentProvider
Producer
PromotionUrl
ProtectionType
ProviderRating
ProviderStyle
Publisher
SubscriptionContentId
SubTitle
UniqueFileIdentifier
UserNoAutoInfo
UserWebUrl
Writer
Year

22

Message

Music

Note
Photo

AttachmentContents
AttachmentNames
BccAddress
BccName
CcAddress
CcName
ConversationID
ConversationIndex
DateReceived
DateSent
Flags
FromAddress
AlbumArtist
AlbumID
AlbumTitle
Artist
BeatsPerMinute
Composer
Conductor
ContentGroupDescription
DisplayArtist
Color

FromName
HasAttachments
IsFwdOrReply
MessageClass
ProofInProgress
SenderAddress
SenderName
Store
ToAddress
ToDoFlags
ToDoTitle
ToName
Genre
InitialKey
IsCompilation
Lyrics
Mood
PartOfSet
Period
SynchronizedLyrics
TrackNumber
ColorText

Aperture
ApertureDenominator
ApertureNumerator
Brightness
BrightnessDenominator
BrightnessNumerator
CameraManufacturer
CameraModel
CameraSerialNumber
Contrast
ContrastText
DateTaken
DigitalZoom
DigitalZoomDenominator
DigitalZoomNumerator
Event
EXIFVersion
ExposureBias
ExposureBiasDenominator
ExposureBiasNumerator
ExposureIndex
ExposureIndexDenominator
ExposureIndexNumerator
ExposureProgram
ExposureProgramText
ExposureTime
ExposureTimeDenominator
ExposureTimeNumerator

FocalPlaneXResolutionDenominator
FocalPlaneXResolutionNumerator
FocalPlaneYResolution
FocalPlaneYResolutionDenominator
FocalPlaneYResolutionNumerator
GainControl
GainControlDenominator
GainControlNumerator
GainControlText
ISOSpeed
LensManufacturer
LensModel
LightSource
MakerNote
MakerNoteOffset
MaxAperture
MaxApertureDenominator
MaxApertureNumerator
MeteringMode
MeteringModeText
Orientation
OrientationText
PeopleNames
PhotometricInterpretation
PhotometricInterpretationText
ProgramMode
ProgramModeText
RelatedSoundFile

23

PropGroup

PropList

RecordedTV

Search

Shell

Flash
FlashEnergy
FlashEnergyDenominator
FlashEnergyNumerator
FlashManufacturer
FlashModel
FlashText
FNumber
FNumberDenominator
FNumberNumerator
FocalLength
FocalLengthDenominator
FocalLengthInFilm
FocalLengthNumerator
FocalPlaneXResolution
Advanced
Audio
Calendar
Camera
Contact
Content
Description
FileSystem
General
GPS
ConflictPrompt
ContentViewModeForBrowse
ContentViewModeForSearch
ExtendedTileInfo
FileOperationPrompt
FullDetails
InfoTip
ChannelNumber
Credits
DateContentExpires
EpisodeName
IsATSCContent
IsClosedCaptioningAvailable
IsDTVContent
IsHDContent
AutoSummary
ContainerHash
Contents
EntryID
ExtendedProperties
GatherTime
HitCount
IsClosedDirectory
DescriptionID
InfoTipText
InternalName

Saturation
SaturationText
Sharpness
SharpnessText
ShutterSpeed
ShutterSpeedDenominator
ShutterSpeedNumerator
SubjectDistance
SubjectDistanceDenominator
SubjectDistanceNumerator
TagViewAggregate
TranscodedForSync
WhiteBalance
WhiteBalanceText
Image
Media
MediaAdvanced
Message
Music
Origin
PhotoAdvanced
RecordedTV
Video
NonPersonal
PreviewDetails
PreviewTitle
QuickTip
TileInfo
XPDetailsPanel
IsRepeatBroadcast
IsSAP
NetworkAffiliation
OriginalBroadcastDate
ProgramDescription
RecordingTime
StationCallSign
StationName
IsFullyContained
QueryFocusedSummary
QueryFocusedSummaryWithFallback
Rank
Store
UrlToIndex
UrlToIndexWithModificationTime
TargetUrl
NamespaceCLSID
SFGAOFlagsStrings

24

Software

Sync

System

TargetSFGAOFlagsStrings
AppUserModel.ExcludeFromShowInN
ewInstall
AppUserModel.ID
AppUserModel.IsDestListSeparator
AppUserModel.PreventPinning
AppUserModel.RelaunchCommand
Comments
ConflictDescription
ConflictFirstLocation
ConflictSecondLocation
HandlerCollectionID
HandlerID
HandlerName
AcquisitionID
ApplicationName
Author
Capacity
Category
Comment
Company
ComputerName
ContainedItems
ContentStatus
ContentType
Copyright
DateAccessed
DateAcquired
DateArchived
DateCompleted
DateCreated
DateImported
DateModified
DueDate
EndDate
FileAllocationSize
FileAttributes
FileCount
FileDescription
FileExtension
FileFRN
FileName
FileOwner
FileVersion
FindData
FlagColor
FlagColorText
FlagStatus
FlagStatusText
FreeSpace
FullText

25

AppUserModel.RelaunchDisplayNam
eResource
AppUserModel.RelaunchIconResourc
e
DateLastUsed
ProductName
HandlerType
HandlerTypeLabel
ItemID
ItemName
ProgressPercentage
State
Status
IsShared
ItemAuthors
ItemClassType
ItemDate
ItemFolderNameDisplay
ItemFolderPathDisplay
ItemFolderPathDisplayNarrow
ItemName
ItemNameDisplay
ItemNamePrefix
ItemParticipants
ItemPathDisplay
ItemPathDisplayNarrow
ItemType
ItemTypeText
ItemUrl
Keywords
Kind
KindText
Language
LayoutPattern.ContentViewModeForB
rowse
LayoutPattern.ContentViewModeForS
earch
MileageInformation
MIMEType
Null
OfflineAvailability
OfflineStatus
OriginalFileName
OwnerSID
ParentalRating
ParentalRatingReason
ParentalRatingsOrganization
ParsingBindContext
ParsingName
ParsingPath

Identity
Identity.Blob
Identity.DisplayName
Identity.IsMeIdentity
Identity.PrimaryEmailAddress
Identity.ProviderID
Identity.UniqueID
Identity.UserName
IdentityProvider.Name
IdentityProvider.Picture
ImageParsingName
Importance
ImportanceText
IsAttachment
IsDefaultNonOwnerSaveLocation
IsDefaultSaveLocation
IsDeleted
IsEncrypted
IsFlagged
IsFlaggedComplete
IsIncomplete
IsLocationSupported
IsPinnedToNameSpaceTree
IsRead
IsSearchOnlyItem
IsSendToTarget

Task
Video

Volume

BillingInformation
CompletionStatus
Compression
Director
EncodingBitrate
FourCC
FrameHeight
FrameRate
FrameWidth
FileSystem
IsMappedDrive

PerceivedType
PercentFull
Priority
PriorityText
Project
ProviderItemID
Rating
RatingText
Sensitivity
SensitivityText
SFGAOFlags
SharedWith
ShareUserRating
SharingStatus
OmitFromView
SimpleRating
Size
SoftwareUsed
SourceItem
StartDate
Status
Subject
Thumbnail
ThumbnailCacheId
ThumbnailStream
Title
TotalFileSize
Trademarks
Owner
HorizontalAspectRatio
SampleSize
StreamName
StreamNumber
TotalBitrate
TranscodedForSync
VerticalAspectRatio
IsRoot

26

Appendix C: Outlook Standard Properties

% Complete
Account
Actual Work
Address Selected
Address Selector
All Day Event
Anniversary
Assigned
Assistant's Name
Assistant's Phone
Attachment
Bcc
Billing Information
Birthday
Business Address
Business Address City
Business Address Country
Business Address PO Box
Business Address Postal
Code
Business Address State
Business Address Street
Business Fax
Business Home Page
Business Phone
Business Phone 2
Callback
Car Phone
Categories
Cc
Changed By
Children
City
Color
Company
Company
Company Main Phone
Complete
Computer Network Name
Contact
Contacts
Content
Conversation
Country
Created
Customer ID
Date Completed

Defer until
Department
Distribution List Name
Do Not AutoArchive
Download State
Due By
Due Date
Duration
E-mail
E-mail 2
E-mail 3
E-mail Selected
E-mail Selector
End
Entry Type
Expires
File As
First Name
Flag Status
Follow-up Flag
From
FTP Site
Full Name
Gender
Government ID Number
Have Replies Sent To
Hobbies
Home Address
Home Address City
Home Address Country
Home Address PO Box
Home Address Postal Code
Home Address State
Home Address Street
Home Fax
Home Phone
Home Phone 2
Icon
Importance
In Folder
Initials
Internet Free Busy Address
ISDN
Job Title
Journal
Junk E-Mail Type
Language

27

Last Name
Last Saved Time Location
Mailing Address
Mailing Address Indicator
Manager's Name
Meeting Status
Message
Message Class
Message Flag
Middle Name
Mileage
Mobile Phone
Modified
Meeting Workspace URL
Nickname
Notes
Office Location
Optional Attendees
Organizational ID Number
Organizer
Other Address
Other Address City
Other Address Country
Other Address PO Box
Other
Address
Postal
Code
Other Address State
Other Address Street
Other Fax
Other Phone
Outlook Internal Version
Outlook Version
Owner
Pager
Personal Home Page
Phone n Selected
Phone n Selector
PO Box
Primary Phone
Priority
Private
Profession
Radio Phone
Read
Received
Recurrence
Recurrence Pattern

Recurrence Range End

Recurrence Range Start
Recurring
Referred By
Remind Beforehand
Reminder
Reminder Override Default
Reminder Sound
Reminder Sound File
Reminder Time
Reminder Topic
Remote Status
Request Status
Requested By
Required Attendees
Resources
Response Requested
Retrieval Time
Role
Schedule+ Priority
Send Plain Text Only
Sensitivity
Sent
Show Time As
Size
Spouse
Start
Start Date
State
Status
Street Address
Subject
Suffix
Team Task
Telex
Title
To
Total Work
Tracking Status
TTY/TDD Phone
User Field 1
User Field 2
User Field 3
User Field 4
Web Page
ZIP/Postal Code

Appendix D: Exemplar Metadata Protocol: Native Production

The following protocol is an example of how one might designate forms and fields for production. It was
drafted for use in a particular case and geared to the needs and capabilities of particular parties. It is not a
blueprint for other cases, and its language and approach should be emulated only when careful analysis
suggests so doing is likely to be effective, economical and proportionate, as well as consistent with
applicable law and rules of practice. This Protocol contemplates principally native production and the
participation of an ESI Special Master.
Note that in addressing metadata and load files in section VI, this Protocol distinguishes between metadata
fields applicable to all ESI, to e-mail and attachments and to imaged paper documents. Its important to
recognize that there is not one omnibus complement of metadata applicable to all forms of ESI. You must
identify and select the fields with particular relevance and utility for your case and applicable to the
particular types and forms of ESI produced. See Metadata Musts at p. 11, supra.
Note also that names assigned to the load file fields are arbitrary. How one names fields in load files is
largely immaterial so long as the field name chosen is unique. In practice, when describing the date an email was sent, some label the field "Sent_Date," others use "Datesent" and still others use "Date_Sent."
There is no rule on this, nor need there be. What matters is that the information that will be used to
populate the field be clearly and unambiguously defined and not be unduly burdensome to extract. Oddly,
the e-discovery industry has not settled upon a standard naming convention for these metadata fields.

I.

General Provisions
a. "Information items" as used here are individual documents and records (including
associated metadata) whether stored on paper or film, as a discrete "file" stored
electronically, optically or magnetically or as a record within a database, archive or
container file.
b. "Data sources" as used here are locations or media used to house information items.
Data sources include places, like warehouses, file rooms, file cabinets, bankers boxes and
folders, as well as storage media like hard drives, thumb drives, diskettes, optical disks,
handheld devices, online storage, file shares (e.g., allocated network storage), databases
(including e-mail client applications and servers) and container files (e.g., PST, OST and
NSF files, Zip archives and PDF portfolios).
c. A party is obliged to consider for preservation and identification all potentially responsive
information items and data sources over which the party (including its employees, officers
and directors) has possession, physical custody or a right or ability to exert direction or
control. The belief that an employee, agent or contractor may fail to act upon or conform to
an exercise of direction or control is not a justification for any party to fail to undertake an
exercise of direction or control directed to preservation, identification and, as potentially
responsive or relevant, production of information items and data sources.
d. To reduce cost and preserve maximum utility of electronically stored information,
production in native electronic formats shall be the required form of ESI production
in response to discovery in this cause. Unless this ESI Production Protocol expressly
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permits or requires conversion, or the Court or the ESI Special Master expressly permit
same on application from a party, native electronic file formats shall not be converted from
their usual and customary format to other formats for production.
e. Production of information in electronic formats shall not relieve the Producing Party of the
obligation to act with reasonable diligence to preserve the native electronic data sources of
the information items produced and relevant metadata. Parties should be vigilant not to
wipe or dispose of source media while under a preservation duty.
f. Where, in the usual course of business a paper document has been imaged as a TIFF or
PDF file or an electronic file has been printed or converted to an imaged format, the
electronic file and the hard copy or imaged counterpart may not be treated as identical or
cumulative such that the paper/imaged format may be produced in lieu of its electronic
source.
g. A party must produce OCR textual content when the party produces images in lieu of
paper originals. A party is not obligated to undertake optical character recognition (OCR)
for information items in the PDF, TIFF or JPG file formats when the party does not hold the
textual contents of such files in an electronically searchable form at the time of the request
for production; provided, however, that if a party adds or acquires such electronic
searchability, the party adding or acquiring same shall supplement production to
make such capability available to other parties in a reasonable manner at the
producing partys cost.
II.

Scope
a. Parties must act with reasonable diligence to identify and produce responsive, nonprivileged ESI under their care, in their custody or subject to their control, notwithstanding
its location, format or medium. Any party may, upon application for relief, seek to limit this
duty by showing that compliance would impose upon the party an undue burden or cost
that is disproportionate to the claims asserted by or against the party.
b. Parties shall produce responsive, non-privileged files with the following extensions: ace,
arc, arj, arx, bh, cal, cat, csv, dat, db, dbx, doc, docx, dot, dotm, dotx, dst, dstx, efx, email,
eml, gnu, gra, gz, gzip, jar, lha, mbox, mbx, mdb, mde, mde, mpp, msg, nsf, ost, pdf, pnf,
pot, potx, ppt, pptx, pst, pub, rar, rpt, rtf, shw, tar, taz, thmx, tif, tiff, txt, tz, wbk, wk4, wmf,
wpd, wps, wri, xla, xlam, xlm, xls, xlsm, xlsx, xlt, xltx, z, zip.
c. Parties shall further produce responsive, non-privileged files with the following
extensions : ac$, atc, avi, bmp, cdd, cdr, dsp, dtd, dwf, dwg, dws, dwt, dxf, gif, hdi, jpeg,
jpg, mov, mp3, mp4, mpeg, mpg, p3, pdd, plt, png, prx, rfa, shx, vsd, vss, vst, wav, wpg.

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Note: Though frequently large in size, these file types rarely contain significant textual
content and so rarely warrant use of the more costly methods needed to process text-rich
file formats for production.
d. The file types listed in a. and b. above must be identified and considered in searching for
potentially responsive ESI; however, this is not an exclusive list of all potentially responsive
file types. Parties are expected to apply their knowledge of information systems and
applications used by employees when seeking to identify potentially responsive file types,
as well as to make a reasonably diligent search for responsive file types not listed.
e. Parties may exclude from production all files customarily found in folders reserved to
Temporary Internet Files with the exception of the contents of Outlook OLK folders.
III.

Unique Production Identifier (UPI)

a. Other than paper originals and images of paper documents (including redacted ESI), no
ESI produced in discovery need be converted to a paginated format nor embossed with a
Bates number.
b. Each item of ESI (e.g., native file, document image or e-mail message) shall be identified
by naming the item to correspond to a Unique Production Identifier according to the
following protocol:
i. The first four (4) characters of the filename will reflect a unique alphanumeric
designation identifying the party making production;
ii. The next nine (9) characters will be a unique, sequential numeric value assigned to
the item by the producing party. This value shall be padded with leading zeroes as
needed to preserve its length;
iii. The final five (5) characters are reserved to a sequence beginning with a dash (-)
followed by a four digit number reflecting pagination of the item when printed to
paper or converted to an image format for use in proceedings or when attached as
exhibits to pleadings.
iv. By way of example, a Microsoft Word document produced by Acme in its native
format might be named: ACME000000123.doc. Were the document printed out for
use in deposition, page six of the printed item must be embossed with the unique
identifier ACME000000123-0006.

IV.

E-Mail and Attachments

a. Form of Production
i. E-mail from Exchange/Outlook environments will be produced in the single message
MAPI-compliant MSG format. Messages in webmail, Lotus Notes or GroupWise
formats shall be converted to the MSG format with care taken to, as feasible,
preserve as discrete fields the information listed in VI(c)(x) through (xxi).
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ii. Attachments to e-mails need not be produced separately from the transmitting
message when the attachments are embedded within the message as MIMEcompliant, Base-64 content (or other encoding scheme employed in the native
source).
V.

Databases
a. Prior to production of any database, the parties will meet and confer regarding the
reasonableness and feasibility of any request for production of or from a database including
the scope, form and content of any such production. Producing Parties shall make
reasonable efforts to produce responsive information and data from databases using
existing query and reporting capabilities of the database software. To facilitate such
interrogation, the Producing Party shall act reasonably and cooperatively to comply with
requests from the Requesting Party for information about the reporting capabilities,
structure, organization, query language and schema of the database.
b. If, after good faith efforts to reach agreement, the parties cannot agree, either party may
seek assistance from the ESI Special Master regarding the discoverability, form, and scope
of production of data from a database.

VI.

Load Files
a. Consistent with the provisions of this Protocol, each party shall produce responsive ESI to
other parties in its native electronic format accompanied by a load file in one of the
following formats to be designated in writing by the requesting party:
i. Concordance;
ii. Summation;
iii. Ringtail; or
iv. Such other format as the Requesting and Producing Parties may agree upon.
b. Designation by Party: Each party shall designate their preferred load file format by no
later than 15 days from the entry of an order adopting this ESI protocol. If a party fails to
make a timely designation, the party will be deemed to have selected the Concordance
load file format.
c. Required Fields: Any load file format employed shall include the following delimited fields:
i. Identifier UPI- The unique production identifier of the item;
ii. Source Name NAME - The original name of the item or file when collected from
the source custodian or system;
iii. MD5 Hash MD5 - The MD5 hash value of the item as produced;
iv. Custodian CUSTODIAN -The unique identifier for the original custodian or source
system from which the item was collected;

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v. Source Path SPATH -The fully qualified file path from root of the location from
which the item was collected;
vi. Production Path NATIVELINK -The file path to the item from the root of the
production media;
vii. Modified Date MODDATE -The last modified date of the item when collected from
the source custodian or system;
viii. Modified Time MODTIME - The last modified time of the item when collected from
the source custodian or system; and
ix. UTC Offset UTCOFF - The UTC/GMT offset of the items modified date and time.
The following additional fields shall accompany production of e-mail messages:
x. To RECIPIENT Addressee(s) of the message;
xi. From FROM The e-mail address of the person sending the message;
xii. CC CC Person(s) copied on the message;
xiii. BCC BCC Person(s)blind copied on the message;
xiv. Date Sent DATESENT date the message was sent;
xv. Time Sent TIMESENT - time the message was sent;
xvi. Subject SUBJECT Subject line of the message;
xvii. Date Received DATERCVD date the message was received;
xviii. Time Received TIMERCVD - time the message was received;
xix. Attachments ATTACHMENTID - The beginning UPI(s) of attachments, delimited
by comma
xx. Mail Folder Path MAILPATH - the path of the message from the root of the mail
folder;
xxi. Message ID MESSAGEID The Microsoft Outlook or similar unique message
identifier.
The following additional fields shall accompany images of paper documents:
xxii. Beginning Identifier BEGNO The beginning unique production identifier for the
first page of the document;
xxiii. Ending Identifier ENDNO The ending unique production identifier for the first
page of the document;
xxiv. Page Count PGCOUNT -The total number of pages in the document;
xxv. Location LOCATION The source box or other location identifier needed to trace
the document to its source.
d. Optical Character Recognition Load Files

i. E-Mail Messages and Attachments: Text shall be extracted from native email
message bodies and produced as document-level text files (.txt) named to
correspond to the UPI of the message and organized into separate folder(s) from the
messages. The full text of attachments to messages need not be extracted;
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however, if it is extracted, it must be produced as document-level text files (.txt)

named to correspond to the UPI of the attachments and organized into separate
folder(s) from the messages.
ii. Document Images: Text extracted from paper document images using optical
character recognition shall be produced as document-level text files (.txt) named to
correspond to the UPI of the image and organized into separate folder(s) from the
images.
VII.

Deduplication
a. Producing parties should not globally (i.e. horizontally) deduplicate production or apply email threading without express authorization from the ESI Special Master or the Court.
Producing parties are encouraged to deduplicate vertically; that is, within a single
custodians document set.

VIII.

Redaction
a. Files that must be redacted should be produced as TIFF or PDF images accompanied by
load files conforming to Paragraph VI (above) and containing extracted text acquired after
redaction (i.e., excluding redacted content).
b. Parties may employ native redaction techniques so long as the method of redaction
employed does not significantly impair the usability or searchability of the redacted item
and the fact of alteration is disclosed.
c. Redactions must be logged in the manner of any other responsive material withheld on
claims of privilege or confidentiality.

IX.

Imaging and Unitization

a. Imaging: Paper documents produced electronically should be imaged at 300 DPI as
single-page Group IV TIFF or multipage PDF files;
i. Imaged documents should be produced with OCR text;
ii. The images shall reflect, without visual degradation, the full and complete
information contained in the original document; and,
iii. If an original document contains color used in a manner material to the import or
understanding of the document, the Producing Party shall comply with reasonable
requests for color image formats of the original at the producing Partys cost. Color
documents should be produced as PDF or JPG files.
b. Unitization: If a scanned document is more than one page, the unitization of the document
and any attachments shall be maintained as it existed in the original when creating the
image file. For documents that contain affixed notes, the pages will be scanned both with
and without the notes and those pages will be treated as part of the same document. The
relationship of documents in a document collection (e.g., cover letter and enclosures, email
and attachments, binder containing multiple documents, or other documents where a
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parent-child relationship exists between the documents) shall be maintained through the
scanning or conversion process. If more than one level of parent-child relationship exists,
documents will be kept in order, but all will be treated as children of the initial parent
document.
X.

Cooperation and Transparency

a. Parties shall cooperate to identify and facilitate access to the contents of encrypted,
corrupted or difficult-to-access files produced. Parties should work cooperatively to fashion
reasonable, precise and cost-effective search strategies and to agree upon and implement
appropriate measures for quality assurance and quality control. Parties are obliged to be
forthcoming and transparent in disclosing their use of mechanized tools to cull responsive
data and encouraged to bring technically-adept personnel together to resolve e-discovery
issues.

XI.

Production Media and Transmittal

a. Production volumes below 12 gigabytes may be produced on three or fewer DVD-ROM
optical disks for Windows-compatible personal computers.
b. Production volumes greater than 12 gigabytes shall be produced as uncompressed data on
Windows-compatible external hard disk drives employing the USB 2.0 interface.
c. Production media shall be prominently and uniquely labeled to identity the Producing Party,
the date of production and the range of Unique Production Identifiers on the medium.
d. Parties shall accompany the production with a written transmittal that sets out the:
i. Range of Unique Item Identifiers included within the production;
ii. The total number of items produced;
iii. The structure of the load file, including the delimiters employed and a list of delimited
fields in the order in which they are employed in the load file;
iv. Confirmation that the number of items produced matches the load file(s); and
v. A privilege log identifying any documents withheld from the data sources being
produced, if any.
e. Parties should exercise care to guard against truncation or data loss attendant to overlong
file names and file paths.

XII.

Modification
a. Any agreement between parties to depart from the requirements of this Protocol as
between those parties must be memorialized in a writing signed by counsel for all parties to
the agreement and promptly furnished to all parties and to the ESI Special Master. Such

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agreement does not relieve those parties of their obligation to other parties and the Court
pursuant to this Protocol.
XIII.

Procedure for Amending or Obtaining Relief from the ESI Production Protocol.
a. Amendment: Any party may request that this ESI Production Protocol be amended. All
such requests shall be in writing and submitted to the ESI Special Master for consideration,
with a copy of the request served to all parties. Any party may oppose a request to amend
the ESI Production Protocol by submitting a written opposition to the ESI Special Master,
with a copy of the opposition served to all parties within five days of service of the request
to amend. The ESI Special Master shall thereafter issue a written decision on the request.
b. Relief: Any party may request relief from any obligation set forth in this ESI Production
Protocol. All such requests shall be in writing and submitted to the ESI Special Master for
consideration, with a copy of the request served to all parties. Any party may oppose any
request for relief by submitting a written opposition to the ESI Special Master, with a copy
of the opposition served to all parties, within five days of service of the request for relief.
The ESI Special Master thereafter shall issue a written decision.

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About the Author

CRAIG BALL
Trial Lawyer & Special Master
Computer Forensic Examiner
Author and Educator

3723 Lost Creek Blvd.

Austin, Texas 78735
E-mail: craig@ball.net
Web: craigball.com

Lab:
512-514-0182
Mobile: 713-320-6066

Craig Ball is a Board Certified trial lawyer, certified computer forensic examiner and electronic evidence expert He's
dedicated his career to teaching the bench and bar about forensic technology and trial tactics. After decades trying
lawsuits, Craig limits his practice to service as a court-appointed special master and consultant in computer forensics
and e-discovery. A prolific contributor to educational programs worldwide--having delivered over 650 presentations and
papers--Craigs articles on forensic technology and electronic discovery frequently appear in the national media. He
writes a monthly column on computer forensics and e-discovery for Law Technology News and Law.com called "Ball in
your Court," recognized as the 2007 and 2008 Gold Medal honoree as Best Regular Column as awarded by Trade
Association Business Publications International, the 2009 Gold and 2007 Silver Medalist honoree of the American
Society of Business Publication Editors as Best Contributed Column and the 2006 Silver Medalist honoree as Best
Feature Series and Best Contributed Column." Craig Ball has served as the Special Master or testifying expert on
computer forensics and electronic discovery in some of the most challenging and best-known cases in the U.S. Named
as one of the Best Lawyers in America and a Texas Superlawyer, Craig is a recipient of the Presidents' Award, the
State Bar of Texas most esteemed recognition of service to the profession and of the Bars Lifetime Achievement
Award in Law and Technology.
EDUCATION
Rice University (B.A., 1979, triple major); University of Texas (J.D., with honors, 1982); Oregon State University
(Computer Forensics certification, 2003); EnCase Intermediate Reporting and Analysis Course (Guidance Software
2004); WinHex Forensics Certification Course (X-Ways Software Technology 2005); Certified Data Recovery Specialist
(Forensic Strategy Services 2009); numerous other classes on computer forensics and electronic discovery.
SELECTED PROFESSIONAL ACTIVITIES
Law Offices of Craig D. Ball, P.C.; Licensed in Texas since 1982.
Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization
Certified Computer Forensic Examiner, Oregon State University and NTI
Certified Computer Examiner (CCE), International Society of Forensic Computer Examiners
Admitted to practice U.S. Court of Appeals, Fifth Circuit; U.S.D.C., Southern, Northern and Western Districts of Texas.
Member, Editorial Advisory Board, Law Technology News and Law.com (American Lawyer Media)
Board Member, Georgetown University Law School Advanced E-Discovery Institute and E-Discovery Academy
Member, Sedona Conference WG1 on Electronic Document Retention and Production
Member, Educational Advisory Board for LegalTech (largest annual legal technology event)
Special Master, Electronic Discovery, numerous federal and state tribunals
Instructor in Computer Forensics and Electronic Discovery, United States Department of Justice
Lecturer/Author on Electronic Discovery for Federal Judicial Center and Texas Office of the Attorney General
Instructor, HTCIA Annual 2010, Cybercrime Summit, 2006, 2007; SANS Instructor 2009
Contributing Editor, EDDUpdate blog
Special Prosecutor, Texas Commission for Lawyer Discipline, 1995-96
Council Member, Computer and Technology Section of the State Bar of Texas, 2003-2010
Chairman: Technology Advisory Committee, State Bar of Texas, 2000-02
President, Houston Trial Lawyers Association (2000-01); President, Houston Trial Lawyers Foundation (2001-02)
Director, Texas Trial Lawyers Association (1995-2003); Chairman, Technology Task Force (1995-97)
Member, High Technology Crime Investigation Association and International Information Systems Forensics Assn.
Member, Texas State Bar College
Member, Continuing Legal Education Comm., 2000-04, Civil Pattern Jury Charge Comm., 1983-94, State Bar of Texas
Life Fellow, Texas and Houston Bar Foundations
Adjunct Professor, South Texas College of Law, 1983-88

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